When the police want a search warrant or an arrest warrant, they must convince a judge that probable cause exists to either search someone’s property or to arrest them. In order to convince the judge, the officer must draft a probable cause statement. This statement lays out the facts that show there is a “fair probability” that the suspect committed the crime.[1] States have slightly different requirements for probable cause statements; however, they generally are the same.

Steps

Part 1

Preparing to Write the Statement

1

Gather relevant information. You need facts to include in your probable cause statement. These facts should be the “who, what, where, when, and how” that explain the crime committed and the defendant’s suspected role in the crime.

2

Make sure the information is accurate. If you secure a search or arrest warrant based on false information, then the warrant could be quashed. Any evidence you gathered from a search could be excluded at trial.[2]

You also could face civil liability. A defendant can sue you for a civil rights violation and get a money judgment.

To protect yourself, you cannot include any information you know is false. You also cannot include any information that you could have discovered was false had you not been reckless in your disregard for the truth.[3] You behave “recklessly” where you are aware that the statements are probably false, or where you omit facts that the judge would find critical in determining probable cause.[4]

3

Get a form. Your police department will probably have a form for you to fill out. You can also ask the prosecuting attorney for the form.[5]

Part 2

Writing the Probable Cause Statement

1

Type up a statement. If no form exists, then you will need to type up a probable cause statement. You can begin by opening a word processing document. At the top of the document, center the words “Probable Cause Statement” in all caps. Make the words bold.[6]

2

Open with an introduction. You identify yourself in the introduction and acknowledge that you are not relaying false statements to the judge.

Sample language could be, “I, Jamilla Clarkson, am the Chief of Police for the City of Pinecomb Point, and in full knowledge that false statements are punishable by law, state the facts contained in this statement are true to the best of my knowledge.”[7]

3

Identify the suspects and the crimes. In the second paragraph, you should identify the suspect and the crimes committed. Sample language: “I have probable cause to believe that Evan Smith, III, committed one or more crimes, specifically: Armed Robbery, Aggravated Assault, Aggravated Battery, and multiple instances of Obstruction of Justice.”[8]

4

Explain the facts in narrative form. In the second paragraph, open with a general statement, such as “The relevant facts supporting a probable cause determination are as follows.”[9] Then provide a narrative of the facts as you know them.

Always be sure to introduce any incident by establishing the date. For example, “On Saturday, May 12, 2015, Evan Smith (“Evan”) and his ex-wife, Sue-Ann Smith (“Sue”), were attending a family barbeque to celebrate the anniversary of their best friends, Kyle and Carol Walker. At the barbeque, Evan complained to Kyle Walker that he did not have the money to continue to make payments on his house….”

Then describe other incidents that support probable cause. For example, “On June 1, 2015, Evan had only $24.32 in his checking account, and his savings account was empty. At approximately 12:32, he pulled into the parking lot of the Pinecomb Point Savings and Loan. Video footage shows him stepping out of the car wearing a black mask….”

5

Add a paragraph for each important fact. Your narrative will probably cover more than one day. You will want to explain each important incident that you believe establishes probable cause. To help make the statement readable, you should create a new paragraph for each new day or incident.

To continue with the bank robbery example: after explaining the bank robbery in a paragraph, use another paragraph to explain what happened on another day. Include all relevant facts that establish probable cause.

6

Insert a conclusion. You should end the probable cause statement by reiterating that you believe the suspect has committed the crime. The final paragraph is your summary of the evidence as well.[10]

Sample language might be, “Based on the facts described and the inferences drawn from them, Evan Smith, on June 1, entered the Pinecomb Point Savings and Loan and, using a loaded weapon, robbed the bank. He then took the money to his ex-wife’s house, where they stored the money in a vault in the basement. When the police interviewed Evan on June 4, 2015, he lied and stated that he had been visiting his sister out of state on the day of the robbery. On June 5, 2015, he burned the face mask and gloves used in the robbery, which was done with the purpose of obstructing the investigation of the robbery.”[11]

7

Include a signature block. Type your name and then space down a few lines and create a signature line. Sign on the signature line. Also include the date.[12]

You may need to have the statement notarized.[13] If you do, then don’t sign until you appear in front of the notary. Ask a colleague where you typically go to get documents notarized.

8

File the statement with the judge. You need to file the probable cause statement with the judge. Each station may have different procedures. Check with a supervisor for more information.